Bonum Certa Men Certa

Koch Brothers and Big Oil Could Not Buy the Decisions in Oil States, SAS

Related: The Anti-PTAB (Patent Trial and Appeal Board) Lobby is Partly Funded by the Koch Brothers and the Right Wing

Inside How the Federalist Society & Koch Brothers Are Pushing for Trump to Reshape Federal Judiciary
Reference: Inside How the Federalist Society & Koch Brothers Are Pushing for Trump to Reshape Federal Judiciary



Summary: In Oil States Energy Services v Greene’s Energy Group, a case which Koch-funded think tanks meddled in (including those whose panel guests send me threatening legal letters), ends up with dissent from a Koch-connected Justice citing or quoting those very same Koch-funded think tanks

THE DECISION that can rattle low-quality patents at the USPTO (but not PTAB, which actually deals with such low-quality patents) was covered here a couple of hours after it had come out (i.e. as soon as I returned home from Town). It turns out, in retrospect, that many people just "tweeted" about it rather than decided to write something detailed, long, and sensible. Media as it used to be is no more; people are getting too lazy to write long articles.

"Media as it used to be is no more; people are getting too lazy to write long articles."Among the very early reactions we have Professor Risch, who wrote: "Oil States is out: Inter Partes Review is valid, but patents are still property. Gorsuch and Roberts dissent. [...] More surprising than Oil States, SAS is out and Gorsuch writes a straightforward (to the 5 who signed on) statutory interpretation: partial institution is not in the statute. The PTO must grant the full petition (or deny it) and decide all claims raised."

Gorsuch was reusing talking points from Koch-funded 'scholars'. They got mentioned by Koch-backed Justices. Surprise? They even gloated about it! "Sad and Happy Day," one of them said, "Supreme Court holds that #patent rights are regulatory-style "public rights" in Oil States v. Greene's Energy, but at least my scholarship on patents as private #property rights quoted & cited repeatedly in dissenting opinion."

He means Gorsuch. This reaffirms the Koch (Big Oil) connection. Are Justices up for sale? Can decisions be bought? Well, not entirely, but perhaps some votes can be 'arranged' with the power of money and 'politicians' like Donald Trump (it was him who nominated Gorsuch).

Another pundit said: "It will be interesting to see what happens after today's SCOTUS SAS decision on IPR. Will PTAB grant review in pretty much the same number of cases and just need more time (or more judges), or will they deny more petitions for review because of higher per-case workload?"

The goal of slowing down PTAB isn't a novel one. The patent extremists will do anything they can to make that happen.

Thomas F. Cotter (scholar, albeit not a Koch-funded one) had this to say:

U.S. Supreme Court Upholds Inter Partes Review In what must be one of its most important patent opinions in recent years, the U.S. Supreme Court this morning upheld the constitutionality of inter partes reviews (IPRs)--the opposition-like procedures that Congress established in 2011 as part of the America Invents Act--in Oil States Energy Services, LLC v. Greene's Energy Group, LLC. Opinion here. I'm not surprised by the ruling, but I am relieved; some of the questions posed during oral argument last November left me just a tad worried about the ultimate outcome (see post here). The breakdown of opinions does not fall along the typical ideological lines: Justice Thomas writes the majority opinion, joined by Justices Kennedy, Ginsburg, Breyer, Alito, Sotomayor, and Kagan.


Another scholar, Jason Rantanen, wrote about this decision in Oil States Energy Services v Greene’s Energy Group along with SAS. On the former he wrote:

Oil States Energy Services v. Greene’s Energy Group: Inter partes review does not violate Article III or the 7th Amendment. Patents are public rights for purposes of this question. This holding is a self-proclaimed narrow one that “should not be misconstrued as suggesting that patents are not property for the purposes of the Due Process Clause or Takings Clause.” Thomas for the majority; Breyer with a concurring opinion (joined by Ginsburg and Sotomayor), Gorsuch dissenting (joined by Roberts).


The CCIA wrote about it much later. Under "Even If The PTAB Thinks A Claim Is Valid, It Has To Conduct An IPR Anyway" (and in conclusion) the CCIA said:

The second case, SAS v. Matal, focused on the statutory language authorizing IPR. The challenger argued that this required the PTAB to conduct an inter partes review and issue a final decision on every challenged claim if at least one claim appeared to be invalid; in contrast, the PTAB only conducted a review and issued a decision on the claims that they had determined met the invalidity threshold in the institution decision. Patent Progress covered this case when it was filed, and—unfortunately—correctly predicted the outcome.

[...]

The alternative, where the PTAB effectively eliminates substantive analysis in the institution decision (other than stating that a single claim had been shown likely invalid), is even worse. In this case there isn’t even the guidance as to which claims the PTAB believed invalid. Instead, every claim has to be argued over. The parties won’t know the scope of the dispute, meaning that they’re less likely to settle with one another. And district courts, unable to determine if the PTAB feels all claims are invalid or only one, will become less likely to stay cases.

Given the importance of this procedural change, the PTO must provide petitioners and patent owners with information as to what they should expect regarding the conduct of proceedings at the first opportunity. Subsidiary concerns like the standard of review can wait.


Last but not least, Dugie Standeford from IP Watch wrote behind a paywall. The introduction says:

United States Patent and Trademark Office inter partes reviews are legal and do not violate Article III of the Constitution or the 7th Amendment, the US Supreme Court said today. While the decision was expected, practitioners before the USPTO’s Patent Trial and Appeal Board can now rest easy, as one patent lawyer put it.


We expect more spin and lots of worship/love for Gorsuch from patent maximalists in the coming days/weeks. The problem is, not many people will dare speak of the influence of money (like the front groups and think tanks involved). Best dissent oil money can buy?

Recent Techrights' Posts

Sounds Like IBM is Preparing for Mass Layoffs/Redundancies in Red Hat, Albeit in "PIP" (Performance Improvement Plan) or "Relocation" Clothing
This isn't the "old" IBM; they're applying pressure by confusion and humiliation
Gemini Links 17/04/2025: Role of Language and Back to Mutt for E-mail
Links for the day
Microsoft's Attack Dogs Have Failed. Now What?
It would be utterly foolish to assume that Microsoft has any intention of changing
All Your "Github Projects" Will be Gone One Day (Just Like Skype)
If you have code you wish to share and keep, then start learning how to do so on your own
Fedora Already Lost Its Soul Under IBM
Fedora used to be very strict compared to many other distros and it had attracted very bright volunteers
Links 17/04/2025: Calling Whistleblowers at Microsoft, Slop Doing More Harm Everywhere
Links for the day
 
Links 18/04/2025: "Fentanylware (TikTok) Exodus Continues", Chinese Weapons Allegedly in Russia Already
Links for the day
Gemini Links 18/04/2025: Price of Games and State of Tinylog
Links for the day
"Sayonara" (さよなら), Microsoft
Windows had fallen below iOS in some countries
Links 18/04/2025: Layoffs at Microsoft Infosys and Qt Becoming Increasingly Proprietary (Plus Slop)
Links for the day
Google News is Dying
treating MElon's algorithmic/biased site as a source of verified news
To Understand Who's Truly Controlling You Follow the Trail of Censorship (or Self-Censorship)
Do not let media steal and steer the narrative; CoCs are not about "social justice", they're about corporate domination
Microsoft is Still Attacking GNU/Linux and the Net
Microsoft bribed the government using money that did not even exist
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, April 17, 2025
IRC logs for Thursday, April 17, 2025
Gemini Links 18/04/2025: Pinephone Pro and Linux is too Easy
Links for the day
Links 17/04/2025: Russian Bot Farms Infect TikTok (Which US Government and SCOTUS Decided to Block January 19), US Hardware Stocks Crash Due to Tariffs
Links for the day
Gemini Links 17/04/2025: Sticking to Free Software, Smolnet, and Counting the Reals
Links for the day
Open Source Initiative (OSI) Privacy Fiasco in Detail: In Conclusion and Enforcement Action Proceeds Against OSI at the California Privacy Protection Agency (CPPA)
There's too much to cover in one single part
When You Fail to Filter Your Clients You End Up SLAPPing Reporters on Behalf of Bad People From Microsoft in Another Continent
“American Psycho”
Links 17/04/2025: LayoffBot and Tesla Cheats Buyers
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, April 16, 2025
IRC logs for Wednesday, April 16, 2025
Trump Authority (CA) With a Trump NSA is All About Security, But Whose?
A "turnkey tyranny", as the NSA whistleblower Thomas Drake loved to call it
Confirming IBM Shutdowns and Layoffs Today
It's not over yet
Gemini Links 16/04/2025: The 2010s Are Calling and Why "Tools Will Not Liberate Us"
Links for the day
You Should Probably Self-Host Your E-mail and Never Use a Web Browser for Mail
Does anyone still believe Gmail is "free"?
Links 16/04/2025: Cliff Lynch RIP, More Attacks on Science (NASA)
Links for the day
StatCounter Shows the Market Share of Vista 11 is Decreasing in Ukraine This Year
Microsoft abandoning Vista 10 users would be a victory for Vladimir Putin
Google Promotes Fake Articles (LLM Slop) Instead of Originals, Relaying Microsoft's Linux FUD Emanating From Microsoft LLMs
Shame on Google for participating in the slopfest
In Some Countries the Largest OEMs Already Dump Microsoft Windows
Windows at 18.9%, Android 60.2%
The "Gold" Rule: Taking Money for Reputation Laundering and Openwashing Under the "Linux" Banner
Seller of expensive toilet paper, Jim Zemlin
LLM Slop Says Slop is "coming for white-collar jobs. Microsoft’s layoffs are just the start"
Look what the Web has become
Microsoft Down From 100% to 10% in Myanmar/Burma
only about 4% of Web requests in Myanmar/Burma come from Vista 11, soon to be the only "supported" version of Windows
Reporting Facts About Violence Against Women Deserves Awards, Not Frivolous Lawsuits and Threats
What is Microsoft's stance on women's safety?
Linux.com as Spamfarm of the Linux Foundation, Partner of the Gates Foundation
They no longer publish articles
When Fedora Said It Was Looking to Integrate "AI" It Meant Promoting Microsoft's Proprietary Spyware and GPL-Violating Slop
When they say "AI" they mean Microsoft
Slopwatch: The Typical Slopfarms and the 'Brian Fagioli Dilemma'
To the Web and to society (exposed to the Web) LLMs are a net negative
It Used to be IBM, Now It's Microsoft (Why You Need to Fire Microsofters or CIOs Working for Microsoft)
Typically the only effective solution is to identity and remove Microsofters from one's project/organisation (before they can bring more Microsofters in)
IBM Closes Offices and Labs in the United States to Open New Ones in India
It's not layoffs per se; they're substituting/swapping veteran employees for lesser-paid ones
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, April 15, 2025
IRC logs for Tuesday, April 15, 2025
Gemini Links 16/04/2025: IndieWeb Carnival, Tinylog RFC, "Focus, the Web and Gemini"
Links for the day